Pimp Your Site (with Legalese): Part 1 – Terms of Use

Having a web business does not save you from the normal perils of having a brick and mortar business, such as being sued, robbed or getting caught in not complying with the law.  In many ways it is more dangerous than having a real life location.  You expose your business to millions of users, many different laws and court systems.

Thus, pretty much every website has a lot of legalese greeting the unsuspecting web surfer, also known as "Terms of Use", "Terms of Use Agreement", "Terms and Conditions", "User Agreement" and similar terms.  The idea of having Terms of Use posted on your website is that you limit your liabilities and responsibilities to website visitors, and visitors’ rights to content on your website, by making them agree to such terms before being allowed to use the website.

One important issue you want to address in your Terms of Use is the danger of being hailed into court in States other than your own and being subject to laws other than your State’s law.  Normally, you cannot be sued in States other than your own, unless you have certain "minimum contacts" with such States.  Is having a website that is accessible in a State minimum contact?  Is having customers in that State minimum contact, delivering goods, providing services?  Ideally, don’t even get into that discussion, but try to limit the danger by employing these tactics:

1.    Make your website a brochure site with limited interactivity.  Just being accessible from a State is usually not considered to be sufficient minimum contact.  Granted, in this Web 2.0 world, this is like saying don’t have a website at all.

2.    If your site solicits interaction from visitors, include language in the Terms of Use that limits use of the site to residents of your State and country.  If you are targeting customers in your State only, this might be a good strategy.

3.    Include provisions in the Terms of Use that limit jurisdiction to your State (i.e. where you can be sued) and provide that only the law of State X will apply to disputes between you and your visitors.  For example, see Section 30 of  Allbusiness.com’s Terms of Use or Amazon’s Terms under "Applicable Law" and "Disputes."

4.    If your website is really global, you may want to have different mirror websites targeted to individual countries in addition to stating on each such site that it is only intended for residents of that country. You may even prevent residents of country X from using the mirror website in country Y, by, for example, only excepting credit cards with addresses in the respective country.  Ideally, you should get advice on how to draft Terms of Use for each country.

Now, before you start copying all the legalese on allbusiness.com
(which would be a violation of their Terms of Use, by the way) or any other site,
remember that each internet business is different and you may need a
whole set of other provisions.   Some of their provisions might be
useless for your purposes.  For example, if you don’t provide
information that could be construed as legal advice, you wouldn’t need
Section 6 of Allbusiness’ Terms of Use.  If you are selling and shipping
products, you may need more specific terms designed for such products.

Finally, if you are in the business of distributing, selling or
advertising stuff that is not really suitable for the under 18 crowd or otherwise regulated,
there are a lot of other things to worry about.

Also see "The "Terms of Use" Trap for Web Businesses" by Jay Parkhill

**This post is for informational purposes only and does not constitute legal advice**

 

About Imke Ratschko


Imke Ratschko is a New York Attorney helping small businesses, business owners and entrepreneurs with all things "Small Business Law," such as litigation, contracts, business owner disputes, shareholder and operating agreements, sale or purchase of a business, investors, and starting a business. You can reach her at 212.253.1027.

3 comments

  1. Logan Susnick

    Are there any recommendations about where to find an affordable lawyer who can create appropriate Terms and Privacy notices for a website?

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